Washington Man Awarded Attorney Fees in Civil Forfeiture Case

Ten years ago, the Olympic Peninsula Narcotics Enforcement Team (OPNET) raided Steven Fager’s property in Discovery Bay, Washington. They found 10 pounds of processed marijuana and 275 marijuana plants. Steven and his brother, Timothy, were charged with possession of drugs with the intent to deliver. They were also charged with defrauding the Jefferson County Public Utility District by diverting power for their own uses.

At the same time as they filed criminal charges, law enforcement attempted to use civil asset forfeiture to take Steven’s property. Civil asset forfeiture is a legal procedure where law enforcement can take an individual’s property if it is suspected of being involved in a crime. In most states, it is not necessary for the property owner to be convicted of a crime—or even charged with one. Additionally, in Washington state, it is the owners who bear the onus of demonstrating the innocence of their property to be able to get it back.
In order to get a warrant to search Fager’s property, law enforcement claimed they were able to smell marijuana from more than 100 feet away from the farm. In his defense, Fager claimed his marijuana crop was for medicinal purposes. In all, OPNET seized about $500,000 of Fager’s property.

In January 2013, Jefferson County Superior Court Judge Craddock Verser ruled that the initial search warrant was invalid. The court heard an expert witness explaining that it would not be possible to smell marijuana more than 100 feet away from the Fager’s property. With the warrant invalidated, that meant every piece of evidence taken during the raid would be inadmissible in court.

“As far as I’m concerned, they [OPNET agents] followed the law on everything they did,” said Clallam County Sheriff Bill Benedict, disagreeing with the judge’s ruling. “Go to Carlsborg and go half a mile downwind from the commercial pot farms… and tell you can’t smell it.”

After the criminal charges against Steven and his brother were thrown out, OPNET dropped the civil asset forfeiture proceedings against them, too.

Steven attempted to sue OPNET for $20 million, reasoning that the seizure of his property hurt his business and hiring attorneys is expensive. The U.S. Supreme Court refused to hear his case in January this year.

Instead, the Washington Supreme Court heard the case. The court ruled 6-3 that Steven Fager be awarded $300,000 in attorney fees. Justice Mary Yu, who wrote the majority opinion, said state law required attorney fees to be awarded to individuals who prevail in cases of civil asset forfeiture.

“The legislature’s intent,” she explained, “was to ‘protect individuals against having their property wrongfully taken by the State.’”

After all the expenses he has accrued, Steven said this was a small financial win for him. However, “the precedent that it sets is the most important thing of all—to give protection from law enforcement wrongfully seizing your property,” he said.

Benedict explained that this decision would change the approach of law enforcement to civil forfeiture. “We’re going to have to take a much harder look about whether we want to use that venue,” he said. Most of all, however, Benedict seemed relieved to have this case behind him after ten years. “Finally, we’re done with it,” he said.

Civil Asset Forfeiture Attorney

If your lawful property has been seized, then you should hire a lawyer. Contact us to set up a free initial consultation and work with one of Florida’s most experienced civil forfeiture defense attorneys.